Opinion
W.C. No. 4-484-746
December 5, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied medical impairment benefits for whole person impairment. We affirm.
The claimant suffered an admitted occupational disease on December 6, 2000, which affected his upper extremities. On October 17, 2001, the treating physician placed the claimant at maximum medical improvement. The claimant subsequently underwent a Division-sponsored independent medical examination (DIME). The DIME physician assigned a 13 percent impairment to the right upper extremity, and 5 percent impairment to the left upper extremity, which converts to 11 percent whole person impairment. The DIME physician also assigned 1 percent psychological impairment. The DIME physician's overall rating was 12 percent whole person impairment.
The respondent admitted liability for a scheduled disability award based on the DIME physician's upper extremity impairment ratings. The claimant objected and requested benefits based on 12 percent whole person impairment.
The ALJ rejected the claimant's testimony concerning pain complaints in his neck and shoulder. Rather, the ALJ found the claimant suffered injuries to his elbows bilaterally. Consequently, the ALJ determined the claimant's functional impairment for the upper extremity injuries was fully compensated by the scheduled disability award for the partial loss of use of the arm at the shoulder.
Expressly relying on § 8-42-107(7)(b)(III), and § 8-41-302(2), C.R.S. 2002, the ALJ further found that the claimant's mental impairment is properly paid separately from any scheduled rating. Consequently, the ALJ determined the 1 percent mental impairment rating did not afford a basis for converting the upper extremity rating to a whole person impairment rating.
Finally, the ALJ determined the parties did not litigate the question of whether the claimant was entitled to 12 weeks of mental impairment benefits under § 8-412-301(2)(a.5), C.R.S. 2002. Therefore, the ALJ did not award any mental impairment benefits.
I.
On appeal the claimant contends that because the psychological impairment was a consequence of the upper extremity injuries and not work-related stress, the ALJ erroneously failed to find the claimant suffered functional impairment to the whole person. We disagree.
Initially, we note that the claimant's Designation of Record includes the "complete Division of Workers' Compensation file." The record transmitted to us on appeal apparently does not include the complete Division of Workers' Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no indication from the record suggesting the claimant requested the ALJ to consider the entire Division of Workers' Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(6), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers' Compensation file, but restricted our review to the record made at the hearing.
Section 8-42-107(1), C.R.S. 2002, 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), C.R.S. 2002. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). Where the claimant suffers an injury not enumerated in § 8-42-107(2), the claimant is entitled to whole person impairment benefits under § 8-42-107(8). In the context of § 8-42-107(1), the term "injury" refers to the manifestation in a part or parts of the body which have been functionally impaired or disabled as a result of the industrial accident. Strauch v. PSL Swedish Healthcare System, supra. However, Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo 1996), held that when a work-related accident results in at least one injury that is listed on the schedule, and at least one injury that is not listed on the schedule, the scheduled injury must be converted to a whole person impairment rating, so that all effects of the accident are compensated as a percentage of whole-person impairment. Sections 8-42-107(7)(b)(I) (II), 2002 [1999 Colo. Sess. Laws, Ch. 103 at 298, effective for injuries after July 1, 1999], which govern this December 2000 injury, were enacted to overrule Mountain City Meat Co., v. Oqueda, supra. Section 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).
The rules of statutory construction provide that statutes be construed in such matter as to further the legislative intent with which they were enacted. Spracklin v. Industrial Claim Appeals Office, __ P.3d __ (Colo.App. No. 02CA0274, October 24, 2002). To discern the intent of the General Assembly, we must first examine the language of the statute. Humane Society of the Pikes Peak Region v. Industrial Claim Appeals Office, 26 P.3d 546 (Colo.App. 2001). Further, when two or more statutes address the same issue, they should be construed in a manner that gives consistent, harmonious and sensible effect to all of their parts. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995); Kinder v. Industrial Claim Appeals Office, 976 P.2d 295 (Colo.App. 1999).
Applying the principles of statutory construction we have previously held that § 8-42-107(7)(b)(II) governs circumstances where the claimant sustains both scheduled and nonscheduled injuries. See Jesmer v. Porter Care Hospital, W.C. No. 4-442-706 (March 27, 2002). The statute requires that without combining or adding individual impairment ratings the scheduled disability is compensated as a scheduled disability and the non-scheduled injury be compensated as whole person impairment. We adhere to our prior conclusions.
Furthermore, § 8-42-107(7)(b)(III), states that "mental or emotional stress shall not be compensated pursuant to § 8-41-301(2) and shall not be combined with a scheduled or a nonscheduled injury." We perceive no ambiguity in subsection (7)(b)(III). It follows that § 8-42-107(7)(b)(III) precludes an ALJ from combining a mental impairment rating with a scheduled injury for purposes of compensating the scheduled injury as a whole person impairment. Accordingly, the issue before the ALJ was not whether the claimant suffered at least one injury not listed on the schedule of disabilities. Rather, the issue was whether the claimant's upper extremity injury caused functional impairment beyond the arm at the shoulder. In resolving this question, the DIME physician's rating of permanent impairment beyond the shoulder is not determinative of whether the claimant has functional impairment to the whole person. To the contrary, in Strauch v. PSL Swedish Healthcare System, supra the court stated that the factual determination of the situs of functional impairment is "distinct from, and should not be confused with, the treating physician's rating of physical impairment under the AMA Guides."
We must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002; Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993) (finding based on substantial, albeit conflicting evidence binding). The claimant's arguments notwithstanding, there is substantial evidence in the record to support the inference that the claimant did not suffer functional impairment beyond the arm at the shoulder. Consequently, the ALJ did not err in failing to compensate the claimant's upper extremity injuries as whole person impairment. See Walker v. Jim Fouco Motor Company, 942 P.2d 1390 (Colo.App. 1997); Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996).
The claimant's further arguments have been considered and are not persuasive. Even under the predecessor statute, psychological impairment in the nature of anxiety and depression, which was caused by functional limitations from a physical injury was treated as a separate "injury" for purposes of applying Mountain City Meat Co. v. Oqueda, supra. Morris v. Industrial Claim Appeals Office, 942 P.2d 1343 (Colo.App. 1996). Accordingly, the claimant's contention that his mental impairment was a natural consequence of the physical injury does not compel a contrary result.
II.
Alternatively, the claimant contends the ALJ erred in denying his request for mental impairment benefits under § 8-41-301(2)(b). The claimant argues he did not waive his right to benefits under § 8-41-301(2)(b) by requesting the mental impairment be compensated under § 8-42-107(8). We disagree.
Waiver is the intentional relinquishment of a known right. A waiver must be made with full knowledge of the relevant facts, and the conduct should be free from ambiguity and clearly manifest the intention not to assert the right. Johnson v. Industrial Commission, supra; Department of Health v. Donahue, 690 P.2d 243 (Colo. 1984). Waiver may be explicit, or it may be implied where a party engages, "in conduct which manifests an intent to relinquish the right or privilege or acts inconsistently with its assertion." Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988).
As argued by the claimant, a party may assert alternative arguments. However, where the record reflects that a party's trial strategy was to advance only a single argument, the record may support a finding that the party abandoned or waived alternative arguments. See Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988) (waiver is implied by acts or conduct which manifest an intent to relinquish a right or privilege). Myers v. Dalm Inc., W.C. No. 4-195-661 (February 1, 1996). We conclude that such circumstances exist here.
It is undisputed the claimant had been placed at maximum medical improvement and the DIME physician made a determination of permanent medical and mental impairment. Furthermore, the respondents filed a final admission for permanent partial disability benefits and the claimant objected to the admission. Accordingly, the issue of permanent mental impairment was ripe for adjudication.
At the commencement of the hearing the ALJ requested clarification of the issues for adjudication. Claimant's attorney stated the issue was "[C]onversion of the Extremity Rating to the Whole-Person Rating," with a reservation of the issues of penalties and future medical benefits. (Tr. pp 3, 5-6). The respondents agreed that the only issue was whether the claimant suffered an injury on or off the schedule. (Tr. p. 4). Furthermore, at the end of the hearing, the claimant's attorney argued the DIME physician's 1 percent mental impairment rating was evidence of functional impairment to the whole person for purposes of awarding benefits under § 8-42-107(8)(c). (Tr. pp. 30-32). The claimant's request for 12 weeks of mental impairment benefits was raised for the first time on appeal. Under these circumstances, the record supports the ALJ's implicit determination that the claimant waived a claim for mental impairment benefits under § 8-41-301(2)(b).
IT IS THEREFORE ORDERED that the ALJ's order dated July 17, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
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 December 5, 2002 to the following parties:
Romolo Chavez, 80 Esther Dr., Security, CO 80911
Atmel Corporation, 1150 E. Cheyenne Mountain Blvd., Colorado Springs, CO 80906
Miki Lawler, Matrix Absence Management, 4300 San Mateo Blvd., NE, #A-120, Albuquerque, NM 87110
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Gregory B. Cairns, Esq., 1200 17th St., #1700, Denver, CO 80202 (For Respondent)
BY: A. Hurtado